Although it pledges in its website (comelec.gov.ph) “to find ways to provide opportunities for the Filipinos who are abroad to be able to cast their votes and have their voices heard in a very important democratic process”, the Commission on Elections (Comelec) has adopted policies that have led to the further marginalization of the overseas Filipino community and to actually reducing the already low number of overseas Filipino voters.

Fortunately, President Benigno S. Aquino III can right the ship by appointing an Overseas Filipino Worker (OFW) as a Comelec commissioner, filling one of two vacancies that opened up last week with the retirement of Rene Sarmiento and Armando Velasco. The appointment would be historic and a fitting way to celebrate the 10th anniversary of the passage of the Overseas Absentee Voting (OAV) law on February 13.

It would also rebuff the very public campaign by Comelec Chairman Sixto Brillantes Jr. to secure the president’s appointment of Comelec “insiders” to replace the retired commissioners who he even sought to retain as “consultants” for the May 2013 elections. Sarmiento had the good sense to reject the offer because, he said, “there are so many Filipinos who are qualified and more competent … let’s give way to new blood.”

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“New blood” outsiders are exactly what the integrity-challenged Comelec needs and an OFW Comelec commissioner can work to repair the significant damage caused by Comelec policies that have marginalized the overseas Filipino community.

Marginalization of OFW voters

One example is the Comelec’s decision on January 17 to strip 238,557 OFW registered voters of their right to vote in the May 2013 elections because they did not timely file their “manifestation of intent to vote in the May 2013 elections.” (http://globalnation.inquirer.net/62449/comelec-throws-ofw-voters-under-the-bus).

This Comelec resolution was approved on December 14, 2012 based on the recommendation of Lucenito Tagle, the Comelec Commissioner in charge of the Overseas Absentee Voting (OAV), who is supposed to advocate for the interests of OFW voters. It relied on a misreading of the Overseas Absentee Voting Act of 2003 (Republic Act No. 9189).

Tagle based his recommendation on Chairman Brillantes’ contention that the Philippine election law requiring the removal from the Comelec Philippine voters’ list of any voter who does not vote in two consecutive elections also applies to overseas voters. This is wrong.

There is no language in the OAV law that supports Brillantes’ conclusion. Article 5 of the OAV law lists those who are to be disqualified and no mention is made of those who fail to vote in two consecutive elections. The closest reference to it is the provision in Section 9.2 which allows for the removal of any name on the Comelec registry of overseas voters “when the overseas absentee voter’s name was ordered removed by the Commission from the Registry of Overseas Absentee Voters for his/her failure to exercise his/her right to vote under this Act for two (2) consecutive national elections”.http://en.wikisource.org/wiki/Absentee_Voting_Bill_%28Philippines%29

Due process for disenfranchised OAV voters

Comelec cannot simply remove the name of a duly registered OAV voter who did not vote for two consecutive elections simply because it has the power to remove the name. Comelec cannot delist a party list simply because it has the power to do so. There has to be due process and a valid reason to do so. Comelec has to cite the provision in the OAV law that requires the commissioners to remove the OAV registered voter who did not vote in two consecutive elections, not simply the provision that gives them the power to do so.

There is also no provision in the OAV law that extends to Comelec the right to excuse OAV registered voters who did not vote in two consecutive elections from being removed from the OAV voters’ list if they simply filed a “manifestation” of their intent to vote in the May 2013 elections.

Did the 238,455 OAV affected voters receive adequate notice of their need to timely file their “manifestation” at a Philippine Consular office abroad in order to vote in the May 2013 elections? According to the Comelec resolution, notice of its decision was accomplished by “the immediate publication of this Resolution in two (2) newspapers of general circulation.”

How will posting notice of this resolution in two Philippine newspapers serve to give adequate notice to 238,455 OAV voters who reside in more than 190 countries abroad? Why did Comelec not publicize this resolution through ABS-CBN news -which it entered into a partnership with on October 15, 2012 – to use its global satellite reach inform overseas voters about this important resolution affecting their suffrage rights?

Section 10 of the 2003 OAV law requires Comelec to “cause the publication in a newspaper of general circulation” of information regarding the holding of elections. The same section also requires Comelec to “determine the countries where publication shall be made, and the frequency thereof, taking into consideration the number of overseas Filipinos present in such countries.”

In enacting the OAV law in 2003, Congress was mindful of the need to meaningfully reach out to the OAV voters wherever they may be residing abroad by requiring the publication of notices in the countries where the OAV voters reside. To strip 238,455 OAV voters of their right to vote by simply posting notices of the Comelec resolution in two Philippine publications subverts the congressional intent.

Constitutional basis for OAV law

When the commissioners accepted their Chairman’s contention that the law applicable to voters in the Philippines applies to OAV voters as well, they did not do their homework. Section 2 of Article V of the 1987 Philippine Constitution gave Congress the explicit power to provide “a system for absentee voting by qualified Filipinos abroad.”

Congress exercised this power by enacting the OAV Act of 2003 which is a “system” separate from the regular system for Philippine voters. This system did not provide, unlike general Philippine election law, that the failure to vote in two consecutive elections would require removal from the Comelec overseas voters’ list.

Congress was aware of the vastly different conditions overseas Filipinos operate under, like the 200,000 Filipinos working on commercial vessels around the world who generally cannot vote in the ports they originally registered in, or the 1.2 million Filipinos in Saudi Arabia who live in homes with no street numbers making it difficult, if not impossible, for them to receive voting notices from the Philippine consular offices.

At the “OAV Summit” held at the Comelec national office in Manila on September 29, 2011, Brillantes informed the OAV stakeholders that the Comelec was concerned about what to do with the 238,455 OAV voters who registered to vote in the 2004 elections but who did not vote in the 2007 or 2010 elections. He assured the stakeholders that Comelec had decided to allow them to vote in the May 2013 elections by simply placing their names in a separate list.

Why did Comelec wait until it was too late?

So why did Comelec change its policy 14 months later after the one year registration period for overseas voters had expired on October 31, 2012? Why did Comelec not vote to simply remove the names of the 238,455 OAV voters before the OAV registration period began on October 31, 2011 so that those affected OAV voters would have a one year opportunity to register again for the May 2013 elections?

Comelec’s contempt for, or worse, indifference to, the enfranchisement of overseas Filipino voters was exhibited also in the lead-up to the May 2010 elections. The registration period was supposed to begin on November 1, 2008 and was to last until September 30, 2009. For some reason, the start of the OAV registration was delayed to February 3, 2009 and was terminated a month earlier on August 31, 2009. The last day of registration happed to be a Philippine national holiday (National Heroes Day) and so the Philippine consular offices were closed.

Maritess Salientes Bloom, a dual citizen from Boston who was unable to register within the abbreviated time period, filed a petition with the Comelec to extend the registration period for overseas Filipinos. In a nine-page decision denying her petition, the Comelec explained that it did not have time to do the extension because “for the first time, the Commission shall be implementing the nationwide automated election system.” But overseas voting is manually tabulated and not automated so this excuse was lame.

Additional evidence of the Comelec‘s indifference to overseas Filipino voters was provided by now retired Commissioner Armando Velasco when he addressed the Conference of Overseas Filipinos for Good Governance at the Sofitel Hotel in Manila on July 2, 2010. In his speech, Velasco – who headed the OAV before Tagle – disclosed that, unlike the Department of Foreign Affairs (DFA) which has a “Secretariat” for overseas Filipino voters, “there is no office for the OAV within the Comelec”.

No OAV office within the Comelec

There is no bureaucracy within the Comelec that can process all the reports accumulated by the Comelec commissioners who regularly travel all over the world to meet with OFW communities to encourage them to register and vote. The OAV reports do not get analyzed and passed on to the next OAV chair. The unprocessed reports probably get dumped in the Comelec garbage can or are stored away in a filing cabinet marked under “M” for the marginalized voters or under “S” for “saling pusa” voters.

This week Congress will pass the long overdue bill amending the OAV law removing the provision requiring overseas voters to sign an affidavit of intent to return to the Philippines within three years or face imprisonment of up to a year. This provision has discouraged the voter registration of millions of Filipino immigrants and OFWs who do not wish to risk imprisonment if they plan to stay abroad for more than 3 years.

It will be difficult to celebrate the congressional passage of this long-awaited bill while mourning the Comelec’s unjust disenfranchisement of 238,455 overseas Filipino voters. To ensure that this travesty does not happen again and that overseas Filipinos will have “their voices heard in a very important democratic process,” Aquino should appoint an OFW to the Comelec.

(Send comments to Rodel50@gmail.com or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127 or call 415.334.7800).